No. 510 VOL. X. OCTOBER 17, 1846. PRICE 18. The following are the Names of the Gentlemen who favour THE JURIST with Reports of Cases argued and decided in the several Courts of Law and Equity: House of Lords Privy Council. {A. GORDON, Esq. of the Inner Vice-Chancellor Wigram's [F. FISHER, Feat La Lincoln's Temple, Barrister at Law. .......... TENISON EDWARDS, Esq. of the Inner Temple, Barrister at Law. The Lord Chancellor's f A. GORDON, Esq. of the Inner Court Temple, Barrister at Law. LONDON, OCTOBER 17, 1846. In continuing the subject of our last leading article, it would be unfair not to notice, that, shortly after the decision in "Tarleton v. Staniforth," the insurance offices then of eminence gave notice, by public advertisements, that they would not take advantage of the decision, but would still hold themselves liable during the days of grace. (Vide 2 Park Insurance, 274, 8th ed.). But, however much such a determination was to the credit of those offices, it is impossible to overlook that, if such a notice was ever binding on them, it is clear, that it could only be so in favour of persons inmring expressly upon the faith of the undertaking implied by it. There is a great variety in the conditions of the London life offices on the point under consideration, and some appear to be framed with the view of security against such cases as Want v. Blunt. For example, the Legal and General has the following condition:-"A policy will not become void if a premium shall be paid within thirty days next after the same shall become payable, notwithstanding the death, or other event upon which the sum assured by the policy shall become due, shall have happened before the payment of the premium; but if the premium shall not be paid before the expiration of thirty days from the day on which the same shall become payable according to the terms of the policy, or to any subsequent agreement with the society, then the policy shall be void." The Legal and Commercial Office, and the Equity and Law Office, have conditions somewhat si milar No legal decision has been made upon the effect of such a condition,—it may operate at law according to its apparent meaning, but in principle nothing can be VOL. X. NN Court ..... { Inn, Barrister Law. Court of Queen's Bench G. J. P.SMITH, Esq. of the Inner Temple, Barrister at Law. Queen's Bench Bail CourtCourt of Common Pleas, including Appeals under Registration of Voters Act.... Court of Exchequer.... { A. V. KIRWAN, Esq. of Gray's Inn, Barrister at Law. D. 【W. POWER, Esq. of Lincoln's Paterson, Esq. of Gray's Ecclesiastical and Admi- ƒ J. P. DEANE, D.C.L. of Doctors ralty Courts Court of Review ..... Commons. W. W. COOPER, Esq. of the Inner Temple, Barrister at Law. Insurance is more self-contradictory or ridiculous. based necessarily and naturally on the doctrine of probabilities; but, under such a clause as that above referred to, a certainty is attempted to be insured,-a perfect certainty of both time and amount. The condition is, moreover, at variance with the body of the policy, and either one or the other must be inoperative. Upon the whole, there appears to be room for at least a doubt, whether an office would, under such a condition, be obliged to receive the premium after the event. had happened upon which the money assured was to become payable, although it would of course be at liberty to take the premium and pay the money assured, if its managers should think fit*. Other offices make no mention of the happening of the contingency before payment. Thus, by the Law Life policies it is "Declared, on behalf of the society, by the three directors thereof whose names are hereunto subscribed, that, in case the said assured shall die before or upon the said 23rd day of June, in the said year 1847, or in case he shall survive that day, and he or his assigns shall, before or upon the 24th day of June which will be in the year 1847, and in each and every succeeding year during which he shall be living, well and *These observations are applicable also to the Insurance Fire Office policies, which have the following conditions indorsed:- All insurances shall be deemed to have expired at four o'clock in the afternoon of the last day of the term for which the policy, whether annual or septennial, shall have been granted; but fifteen days shall be allowed to every person insured, to be accounted from the expiration of his or her policy, for the purpose of renewing the same; and in case any loss or damage shall happen by fire before four o'clock in the after noon of the last of those fifteen days, and such policy shall be renewed during that time, or the premium paid for the renewal thereof, then such renewed policy shall take effect from the expiration of the former policy, so as to cover such loss or damage to the extent insured." This condition is evidently intended to get over the decision in Tarleton v. Staniforth truly pay, or cause to be paid, unto the directors of the said society for the time being, the annual premium or sum of £—, of lawful money current in Great Britain, the society" &c. And there is indorsed a condition:-" Policies will not be considered to be in force beyond thirty days after the expiration of the year, unless the premium then due shall have been actually paid at the office of the society in London, on the receipt of two directors. But should proof be given to the satisfaction of the directors, that the party or parties whose life or lives hath or have been assured, continue in good health, the policies may be revived at any period within six months, on the payment of a fine to be fixed by a board of directors, not exceeding 10s. per cent. on the sum assured; or at any period within thirteen months, on the payment of such fine as the board of directors may think reasonable." The policies of the London Life Assurance are to the same effect as the Law Life policies, but the conditions or rules of the society do not appear on the policy; they are printed on the cover in which it is sent to the assured. The conditions of the London Assurance Company (allowing thirty days) are much the same, but contain the further term:-" No assurance is in force until the premium is actually paid." The Royal Exchange Assurance Company insures on similar conditions, and makes one of its terms, that "No assurance will be in force until the premium has been paid." Enough forms have been quoted to shew the nature lowing fifteen days, then, upon principle, any length of time should be allowed, on payment, with interest, of the premiums accrued in the interval. Thus much is certain, that a prudent insurer will take special care to pay the premiums of all policies on or before the day fixed for annual payment, and run no risk of losing the insurance by any accidental event, or the bad faith of an insurance company. Insurance companies usually act in a liberal and honourable spirit; but it must not be forgotten, that instances of conduct of another sort have occurred, and that taking strict advantage of the terms of insurance is usually defended upon the ground of some alleged suspicion of improper conduct of the assured, which the office is not able to make out by strict legal proof. Whatever may be the difference of opinion as to certain of the preceding observations and criticisms, it is believed that all will concur in the opinion that the real contract between the insurers and the insured should be shortly and clearly expressed in one instrument, which should be in the custody of the insured; and that no term or condition should be left ambiguous, or require to be extracted from contradictory phrases, or to be sought in separate documents, or remain in the discretion of the insurers; and that, whatever the insured has contracted for, he and his representatives should receive as of right, and not by indulgence, or out of compassion. HOUGHTON, (Reported 10 Jur., Part 1, p. 747). of this class of offices; their terms are similar to, and STRICTURES UPON THE CASE of BROWNE v. must receive a similar construction with, those in Want v. Blunt; indeed, a large portion of the reasoning which the court applied to the policy and rules in that case, is entirely applicable to the policies of this class of offices, inasmuch as the words "he and his assigns" in the Law Life policy, "the said assured or the assigns of the said assured" in the London Life Assurance policy, clearly indicate an intention to exIclude the executors or administrators of the assured from any benefit of the fifteen days. It should seem tolerably clear, that the death of the assured, in this class of offices, within the fifteen days or other period after the true day of payment, would cause the loss of the whole sum insured; and that whatever the company might pay, would be as a matter of favour or charity, not of right. This state of things arises out of, or rather is part of, the general want of punctuality in making periodical payments—it is unsound, improper, and unbusinesslike. Why should not the contract be distinctly stated? why not all the terms be contained in the policy, or all of them in the conditions? If it be intended that any insurance shall be in the first instance for a year and fifteen days, and afterwards for a year, beginning to run from the end of the fifteen days, with an additional year's premium on the happening of the event assured against during the last fifteen days of each further year, why is it not so stated? Again, why should not the premium be payable punctually at the end of the year? Is there any magic in the fifteen or thirty days' allowance? The insured must be punctual to the last day allowed, why can he not be so to the true day of payment? If there be any good reason for al It is a very wise and decorous rule not to object, on slight grounds, to the recent decisions of any of our the instance before us, for the error which (according judges. This restraint, however, does not operate in to the report) was committed in Browne v. Houghton is so manifest, that nothing but the general accuracy of the reports of cases in the court in question which appear in this journal can induce us to receive this particular report as a correct account of the actual de cision. In Browne v. Houghton, it was held, that a direction to accumulate rents during minorities, engrafted on limitations of real property in strict settlement, and wot secured by any term or trust created in precedence to the estates tail, was absolutely and totally void for remoteness; the reported ground of this decision being, that the case was concluded by Lord Southampton v. Marquis of Hertford (2 Ves. & Bea. 54) and Marshall v. Holloway, (2 Swanst. 432). And the Vice-Chancellor is represented to have been so clear in opinion, that he did not hear the reply. By neither counsel nor judge does it seem to have been observed, that the provision for accumulation, the validity of which was questioned, was, from the first, capable of being destroyed by any and every tenant in tail entitled under the limitations; and that, conse quently, it was free from any objection on the ground of remoteness. Decision after decision, and treatise upon treatise, have laid it down as a well-established rule, that no limitation, trust, power, proviso, or re striction liable to be destroyed by tenants in tail entitled under valid limitations, in the same instrument, can possibly be void by virtue of the rule against perpetuities. Not only, however, was this general and unvarying rule lost sight of, but it was also not remarked, that, in Southampton v. Hertford, the trust for accumulations was secured by a term of years preceding the estates tail, which (and, therefore, the trust of it) could not possibly be destroyed; and in Marshall v. Holloway, the trust for accumulation was declared of the fee itself in priority to all the limitations, so that it was not within the power of any tenant in tail entitled under them. But, in Browne v. Houghton, the proviso was simply engrafted upon the limitations, by way of partial defeasance thereof; so that it was, ab initio, destructible by the first tenant in tail who should attain his majority. Upon these grounds, it is perfectly clear that the decision in this case ought to have been the reverse of that actually pronounced. This must, we presume, be attributed to the circumstance of the rules and distinctions just mentioned not having been (so far as the report informs us) at all presented to the mind of the The New County Courts Act, 9 & 10 Vict. c. 95, &c. By The appearance of a new statute affecting any branch of the law, is regularly the signal for the publication of editions of the statute, prepared by learned editors, with more or less of useful learning displayed in the annotations which form the chief value of such publications. It was not to be expected that the promulgation of a statute so important as the 9 & 10 Vict. c. 95, would be without the usual accompaniment of numerous editions, enriched by notes critical, practical, &c.; and, accordingly, we believe numerous editions of this act are already before the public. Two of them only are before us, and we shall presently comment upon their merits. young men, that all books have a great circulation, and that if their names only appear on the back of a book being known, their professional merits will unavoidof some kind, they forthwith become known men, and, ably be soon tried and tested. Both these notions we believe to be unfounded, but the latter more than the former. It may be sometimes more convenient for a professional man to read an act of Parliament in the form of a slight and portable octavo, neatly printed, than in the form in which acts are issued by the to him to refer to the notes, shewing what the law was Queen's printer; and it may occasionally be convenient that the act purports to affect, or what are the various constructions of which the clauses of modern acts are usually susceptible. It may, therefore, sometimes be really useful to the public that some young lawyer edition of it. But, with regard to the notion, that by should, on the appearance of a new statute, publish an doing so he in any, the slightest degree, lays the foundation of that species of fame, from which he may expect the solid reward of his vigils by the midnight lamp; we hold such a notion to be a pure fancy, founded on total ignorance of the state of the Profession. And any young barrister desirous of surmounting the evil of we should, therefore, if we were asked to give advice to friendless obscurity, advise him, if he does not like the labour of writing a really solid work, to fight a duel,— to win a rowing match, or a foot-race, or to commit a breach of privilege,-anything rather than to edit an We are well aware that on this point there are many act of Parliament immediately upon its coming out. opinions, both as to the utility of such labours to the public, and as to their utility to the professional reputation of the editor; and while expressing our own opinion, we are quite willing to leave others to the enjoyment of theirs. We shall therefore now, after entering our protest against the class of works before us, which we cordially dislike, proceed to discuss the merits of the particular specimens before us, keeping in mind, that, since there are people who like barristers to prepare editions of acts of Parliament with notes, to tell them what the acts mean, or what they do not mean, it is important to such persons to be assisted in their selection of the best editions. Mr. Udall's edition of the 9 & 10 Vict. c. 95, before us, contains some useful notes, chiefly consisting of references to decisions made in Ireland under the Civil Bill Jurisdiction; but partly consisting also of critical observations on the clauses of the act itself. Of the notes to Mr. Udall's edition, we select the following as a fair specimen, in reference to the 68th clause, enacting, "That it shall not be lawful for any plaintiff to divide any cause of action." On this, the following is the note: "The plaintiff shall not divide any cause of action' without abandoning the excess above 201.: thus, if 'an entire debt is due, say on a bill of exchange for 407., he cannot bring an action for 207. and afterwards sue for the balance. Thus far this is clear. The large 'majority, however, of pecuniary claims are trades'men's accounts, consisting of a variety of items, sold at different times, for each of which there is a separate contract or cause of action. Had there been nothing further in the section, but little or no doubt could have existed but that the creditor might have pro Before, however, doing so, we should wish to offer a few remarks, and those chiefly by way of advice to young barristers, anxious to distinguish themselves, and to attract, by legitimate means, that notice, without which the deepest learning and the most brilliant ta-ceeded in separate actions for each item, and recovered lents are of little avail. It appears to be a prevalent no- 'his whole demand by successive suits in these courts. tion among young professional men, that an act of Par- The object of the section was no doubt to prevent this liament effecting great changes in the law, and the provi- being done, and to protect a debtor from a multiplicity sions of which are, therefore, necessarily untouched by of suits where one would suffice. Has this been efdecision, cannot be understood by the Profession in itsfected? This appears to me to depend principally on naked form. Hence, no doubt, they conceive, that, by printing it with notes purporting to explain its mys-any plaintiff having cause of action' for which a teries, they are extensively enlightening the public. It appears, also, to be a prevalent notion among such the words I have marked in italics in the section 'plaint might be entered under this act, if not for more than 207. Does this extend the meaning of the sec tion to any number of causes of action for which but one plaint would be necessary? Can'cause of action' 'be construed to be, for this purpose, the same as one ' demand? for a demand may include infinite causes of 'action. It is certainly very far from clear that such is the meaning of the section. That part of it which 'enacts that the judgment shall be in full discharge of 'all demands in respect of such causes of action will not 'aid the supposed intention: it might, perhaps, have 'done so had the words been inverted, and it had stood thus, that the judgment should be in full discharge of all causes of action in respect to such demand. The question simply, what is a dividing of action, has received judicial interpretation in a case that arose as to 'the jurisdiction of the county court,-The King v. The Sheriff of Herefordshire, (1 B. & Ad. 672). The application was for a writ to prohibit the sheriff from proceeding in two suits in his county court at the 'suit of the same plaintiff against the same defendant, ' and it appeared that the facts were these: Mr. Udall has also a very sensible note on the 91st section, on which some observations were printed ante, (10 Jur. 341):-" A question," says the learned annotater, "arises as to what the fees mentioned in this section are to be a remuneration for. Are they to be the remuneration for investigating whether a party has a cause of action as well as the conducting the action in court? or are they the remuneration for doing the business in court only? The former construction would lead to considerable absurdity. Take, for instance, the case of replevin for a distress damage faisant. The "A. became indebted to B. in a sum not exceeding client consults his attorney. If the attorney advises '40s., for the carriage of a parcel of goods, and in a that his client has a good case, and goes on to trial, he 'month afterwards incurred another debt to B. not ex- cannot recover his fees for advising and investigating, ceeding 40s., for the carriage of a second parcel. A. although the party succeeds; but, if he advises him brought two actions in the county court for the re- that he has no case, and that there is no use to go on, spective debts:-Held, that the causes of action were he can. Or, supposing he advises him that he has a distinct, and that A. was entitled to sue separately for good cause of action, but declines to be the attorney in each demand, and the Court of King's Bench refused a the new courts, he could recover more if he declined to prohibition.' In that case, Lord Tenterden, giving go on than if he were successful in the action. It, how'judgment, said, this was not a splitting of actions, 'to ever, is by no means an answer to a proposed construcbe so, the cause of action must be one and entire: in tion merely because it leads to an absurdity. Such a 'these cases the two items are perfectly distinct debts, result only operates as a warning to look out for a 'the one having no connexion with the other;' and he more reasonable construction if it can be found, and it 'added, that the plaintiff might have sued for one before appears to me this can be arrived at by construing the the other was due; and that, as he had a remedy for words appearing or acting in the said court' in a the first debt, so he must have one for the second. strictly literal sense. It is, however, by no means 'The Irish statute, for giving the civil bill jurisdiction clear that this is the true construction. It may be 'to the assistant barrister's court, 36 Geo. 3, c. 25, s. 8, observed that the latter part of the section speaks of has the following provision:-"That no cause of action the taxation of costs. One cannot conceive what taxa'still subsisting, and, in the whole, amounting to a sum tion would be necessary if the fees mentioned apply to beyond such sum as is made, according to the nature the whole charges touching and concerning the cause. of the case, recoverable by force of this act, shall be It will also be observed, that the fees mentioned apply 'split or divided, so as to make the ground of two or to the summary jurisdiction of the court only. See more different actions, in order to bring such cases note to sect. 74 as to the meaning of the term 'that the within the jurisdiction created by this act.' The judge shall proceed in a summary way.' When one 'words 'no cause of action still subsisting, and, in the sees the amount in dispute between litigants made the whole, amounting to a sum,' &c. would, at the first measure of remuneration for professional services, it view, lead to an inference that the Legislature in- brings to remembrance a former celebrated law code 'tended to make it apply to all causes of action existing and its schedule of fees, by which one and the same fe at the time of the commencement of the suit; but the was to be paid for each of the several matters mentioned contrary has been held,-as, where A. lent B. a sum in the first item, thus:-"To serjeants and barristers of money, and some time afterwards another sum:- at law, upon a motion, reference, giving advice, OR Held, that A. might sue for them separately. See the 'signing bills or pleadings.' (See Lord Somers' Comcases collected in Napier's Digest Civ. Bill. The rulementary in the Law Tracts, 6th vol., p. 178)." appears to have been settled by the decision of Bushe, C. J., in the case of Hamblin v. Hamblin, reported in Mr. Napier's Digest. When that case came on for appeal, the learned Chief Justice was inclined to consider it a splitting of a cause of action; but, during "the argument, the above case of The King v. The Sheriff of Herefordshire was cited, and, after taking time to consider, he, as is stated, on the authority of that case being so much in point, held, that he had no further difficulty in deciding that it was within the jurisdic'tion of the civil court. It would, however, have been more satisfactory had the determination proceeded upon the words of the statute itself, rather than upon the English case, which determined simply what was a splitting a cause of action. One would be almost 'inclined to doubt the above being the only reason given, if it were not reported by a gentleman of the acknow'ledged learning and accuracy of Mr. Napier. The "Westminster Court of Requests Act (6 & 7 Will. 4, c. 137, s. 42) has terms very much more special and de'fined: it is, "That nothing herein contained shall ex Mr. Jagoe's edition of the act is by no means so full or so erudite in the matter of notes as Mr. Udall's. Indeed, generally, in his notes, we perceive little more than a conversion of the terms used in the clauses in the act into other terms, in order to explain them. We should except, however, from this censure, the note on the 119th section, touching actions in replevin, which, by referring to the existing law upon replevin, will assist those who have to act under the new statute. On the whole, we should say that both these little books may be found useful in their way, but we should certainly give the preference to Mr. Udall's. The Right Hon. Sir Thomas Wilde, Knt., Lord Chief Justice of her Majesty's Court of Common Pleas has appointed John Lane the younger, of Stratfordupon-Avon, in the county of Warwick, Gent., to be one of the Perpetual Commissioners for taking the acknowledgments of deeds to be executed by married women, in and for the county of Warwick. Att.-Gen. v. Ludlow Baker v. Pearson Haybittle v. Parker (FD, Haybittle v. Merchant} (FD, C) Before the Right Hon. the MASTER OF THE ROLLS, af Oaseley v. Anstruther (E, 3 Westminster. Monday Nov. 2 Motions. 5 sets, F D, C) Culsha v. Cheese (F D, C) Hubbard v. Youug Drewry v. Davies Drewry v. Drewry Pleas, Demurrers, Causes, Further Di. Stratford v. Retson (FD, C) Woods v. Wood S O to present Kilner v. Dec (F D, C) Turner v. Hudson petition, Sh Stourton v. Jerningham To Turner v. Hudson (F D, Turner v. Scott Turner v. Greatwick C) Kendall v. Granger (F D, C) Gardler v. Gardler (F D, C) Tuesday..... 3 Petitions-Unopposed first. Wednesday Thursday present petition Thursday 12 Motions. Kendall v. Granger Pleas, Demurrers, Causes, Further Di. Kendall v. Carthew NEW CAUSES. Wednesday Thursday 19 Motions. .... Friday Saturday Pleas, Demurrers, Causes, Further Di 21 rections, and Exceptions. Monday.. 23 Tuesday.. Wednesday Short Causes, Consent Causes, and Consent Petitions every Saturday at the sitting of the court. Notice.-Consent Petitions must be presented, and copies left with the Secretary, on or before the Thursday preceding the Saturday on which it is intended they should be heard. EQUITY CAUSE LISTS, MICHAELMAS TERM, CHARLES BINDLEY, Chapel-street, Spitalfields, Middle sex, trimming and silk manufacturer, silk dealer, dealer and chapman, Oct. 23 at half-past 12, and Nov. 23 at half-past 11, Court of Bankruptcy, London: Off. Ass. Turquand; Sol. Hudson, Bucklersbury.-Fiat dated Oct. 5. JAMES PITKEATHLY, Gloucester-street, Regent's-park, Middlesex, timber merchant, dealer and chapman, Oct. 23 at 12, and Nov. 23 at 11, Court of Bankruptcy, London: Off. Ass. Turquand; Sol. Fraser, Furnival's-inn. - Fiat dated Oct. 7. THE TRING, READING, AND BASINGSTOKE RAIL. WAY COMPANY, New Broad-street, London, Oct. 31 at half-past 11, and Dec. 11 at 11, Court of Bankruptcy, London: Off. Ass. Graham; Sols. Lawrence & Plews, Old Jewry-chambers.-Fiat dated Oct. 3. WILLIAM HOPEFUL LEREW, Upper Norton-street, Fitzroy-square, Middlesex, apothecary, Oct. 22 at 2, and Nov. 27 at 12, Court of Bankruptcy, London: Off. Ass. Groom; Sols. Lowless & Son, Hatton-court, Throgmortonstreet.-Fiat dated Oct. 7. JOHN KEARRY, Strutton-ground, Westminster, Middlesex, cheesemonger and grocer, Oct. 29 at 2, and Dec. 3 at 12, Court of Bankruptcy, London: Off. Ass. Johnson; Sols. Baylis & Drewe, Basinghall-street.- Fiat dated Oct. 9. WILLIAM BARKER, Tottington Higher-end, Lancashire, cotton spinner and manufacturer, Oct. 23 and Nov. 19 at 12, District Court of Bankruptcy, Manchester: Off. Ass. Hobson; Sols. Joynson, Manchester; Bower, Tokenhouseyard, Lothbury, London.-Fiat dated Oct. 3. CHRISTOPHER CARLISLE CLANCEY, Chorlton-uponMedlock, Lancashire, saddler, harness maker, dealer and chapman, Oct. 21 and Nov. 18 at 11, District Court of Bankruptcy, Manchester: Off. Ass. Fraser; Sols. Law, Manchester; Gregory & Co., Bedford-row, London.-Fiat dated Oct. 3. JOHN WHEELWRIGHT, Stoke St. Milborough, Shropshire, farmer and timber dealer, dealer and chapman, Oct. 31 and Nov. 24 at 11, District Court of Bankruptcy, Birmingham: Off. Ass. Christie; Sols. Motteram & Knowles, Birmingham; Smith & Co., Bedford-row, London.-Fiat dated Oct. 1. |